The right to court and the right to a court translator / interpreter

The first modern guarantees of the right to a court were formulated in the Universal Declaration of Human Rights adopted by the United Nations General Assembly on December 10, 1948. The Declaration provides for the equal right of every person to a fair and public trial ruling on their rights and duties or on legitimacy of accusation of committing a crime. The Declaration used to be a non-binding act, and it merely defined the standards. However, it entered into the customary law.

The foundations for common legal solutions laid down in it were subsequently included in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), drawn up in Rome on 4 November 1950. According to Article 6 (1) of the Convention, everyone has the right to a fair and public hearing of their case within a reasonable time by an independent and impartial tribunal established by law in settling their civil rights and obligations or the merits of any charge against them in criminal proceedings.

The International Covenant on Civil and Political Rights (ICCPR) of 14 December 1966 is another international legal instrument covering the right to a court.

The ECHR and the ICCPR provide a guarantee of the individual’s right to an impartial court, but only the former directly points to the right to the assistance of the interpreter as part of the right to a court. Both acts have been ratified by Poland, and in accordance with the provisions of Article 91 (1) of the 1997 Constitution of the Republic of Poland (CoRP), they are part of the Polish legal order.

According to the ECHR, the right to a fair trial consists of the following principles: the right of an individual to have a legal dispute dissolved by an impartial and independent court acting under the Act; the individual’s right to have their case considered without undue delay; the principle of equality of parties in the process; the principle of active participation of parties in proceedings; the right to appeal from a judgment to a higher court; the prohibition of re-trial and punishment for the same act; the right to legal information, including — explicitly — the right to employ a free interpreter / translator if the accused does not speak the language used in the proceedings.

The Charter of Fundamental Rights of the European Union (CFR) also established the right to an effective remedy and access to impartial courts in Title VI “Justice”. According to Article 47 CFR, everyone has the right to a fair and public hearing of their case within a reasonable time by an independent and impartial tribunal previously established by law, as well as the opportunity to seek legal advice, assistance from a counsel and a representative. The content of this provision basically corresponds with the content of Article 6 (1) ECHR.

The European Court of Human Rights plays an important role in the interpretation of the fundamental rights in the CFR, including the right to a court. Recognition of the importance of the ECHR by the European Union (EU) is provided by the relevant provisions of the Treaty on European Union of 1992 (TEU). The TEU contains references to the ECHR according to which, inter alia, the EU respects the fundamental rights guaranteed by the ECHR, and the rights conferred by the constitutional traditions common to the Member States are the principles of the law of the Communities. As explained by the Presidium of the Convention in its comment on Article 52 of the CFR “Scope and interpretation of rights and principles”, it is necessary to ensure coherence between the CFR and the ECHR (including their protocols). It is worth adding that the importance and scope of the rights guaranteed by the ECHR are contained not only in these two instruments, but also in the rulings of the European Court of Human Rights and the Court of Justice of the European Union. According to the case law, legal aid should be provided where, in the absence of such assistance, it is hardly possible to provide an effective remedy.

The scope of the right to a court specified in the CFR is close to the Polish constitutional standard, which consists in particular of the right of access to an independent, impartial, and independent court, the right to form a judicial process in accordance with the requirements of justice and publicity, and the right to a judicial decision, i.e. to obtain a court’s binding resolution of the case in question. Additionally, according to Article 47 CoRP, legal aid is provided to those who do not have sufficient funds to the extent that is necessary to ensure effective access to justice.

The analysis of the content of the provisions of the aforementioned legal acts allows one to draw conclusions as to how the right to a court is perceived and defined from the international perspective. Over the years, not only has the definition of this right changed, but also the interpretation of its content. Its essence was not only to ensure efficient mechanisms at the stage of judicial proceedings, but also to provide a commitment of the state to guarantee the effectiveness of access to this right. In the case of those who do not have a good command of the language of the adjudicating court, the presence of a qualified interpreter is the condition of the efficiency mentioned.

According to the regulations of the CFR and the ECHR, the process without the interpreter’s involvement in the case of an accused who does not know the language of criminal proceedings constitutes a manifest violation of EU law and international law. The protection of the rights of persons accused in criminal proceedings has thus been identified as a fundamental right in the EU. The Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings is the first act of EU secondary law dealing directly with translation in criminal proceedings. The Directive was adopted to improve the protection of individuals’ rights by establishing common minimum rules on the right to a fair trial and the right of defense. According to point 33 of its preamble, the provisions of this Directive that correspond with the rights guaranteed by the ECHR or the CFR should be interpreted and implemented together with these rights in a coherent manner.

According to Article 17 of Directive 2010/64/EU, the Member States should provide free and appropriate language assistance to enable suspects or accused persons who do not speak or understand the language of criminal proceedings to fully exercise their right of defense and to guarantee the fairness of the proceedings. Furthermore, it is important to provide adequate quality of interpretation and translation for the suspect or the accused in order to ensure the accuracy of the procedure, in particular by ensuring that the suspect or the accused is aware of the case pending against them and is able to exercise their right of defense (Article 2 (8) and Article 3 (9) of Directive 2010/64/EU). Moreover, the quality of interpretation or translation of the documents provided may be subject to a specific control procedure, in accordance with Article 2 paragraph 5 and Article 3 paragraph 5 of Directive 2010/64/EU.

Article 5 of Directive 2010/64/EU also addresses the practical availability of qualified legal translators. According to this provision, the Member States should take concrete measures to ensure the quality of interpretation and translation and, as a means of achieving the necessary quality, establish and make available a register or registers of independent translators and interpreters who are qualified. If it turns out that in a particular case the quality of translation or interpretation is insufficient to ensure the reliability of the proceedings, the competent authorities must be able to replace the appointed interpreter or translator in accordance with recital 26 of Directive 2010/64/EU. Recital 32 states, however, that the level of protection intended to be ensured by the Directive is not to fall below the standards set out in the ECHR and in the CFR.

According to Article 6 of Directive 2010/64/EU, without prejudice to the independence of the judiciary, the Member States should invite bodies responsible for the training of judges, prosecutors, and judicial staff to pay attention to the specificity of communication through the interpreter/translator so that such communication is efficient and effective. This recommendation is intended to motivate prosecutors, police officers, and judges to deliberately consider factors that may affect the quality of translation/interpretation, such as the pace of the speech or the highlighting of relevant information. This recommendation is an abstraction from the long-year treatment of interpreters/translators as translation tools, however it requires reinforcement by appropriate education.

Under the Polish law, the right to a court has been expressed in Article 45 paragraph 1 CoRP according to which everyone has the right to a fair and public hearing of the case without undue delay by a competent, independent, impartial, and independent court. This formula is supplemented by Article 77 (2) expressing a prohibition on the closing of the judicial process of investigating infringements of freedoms or rights, and Article 78 CoRP, introducing the procedural principle of instances of judicial decision-making. The form of the court’s right includes: Article 173 CoRP establishing the independence of courts and tribunals, Article 177 CoRP introducing the presumption of jurisdiction of common courts in all matters except for the matters reserved by law to the jurisdiction of other courts, and Article 178 CoRP establishing the principle of independence of judges, whose guarantees are included in Article 178 paragraph 2 and 3, and Articles 180 and 181 CoRP.

Article 45 paragraph 1 CoRP, placed in the chapter devoted to the freedoms and rights of man and the citizen, is the source of a subjective right to a court of the individual, whereas Article 45 CoRP indicates the autonomous character of this right in the constitutional system. The right to a court is not merely an instrument permitting the exercise of other constitutional rights or freedoms, but is inherent and protected regardless of the violation of other subjective rights. This right includes the right of access to a court, i.e. the right to initiate a procedure before a court as an impartial and independent body, the right to a proper judicial process, according to the requirements of justice and disclosure, and the right to a judicial decision, i.e. the right to a court’s binding resolution of a case.

At the legislative level, the issue of the translator and interpreter as an element of the right to a court is regulated in Article 197 paragraph 1 of the Polish Code of Criminal Procedure of June 6, 1997, according to which sworn translators and interpreters must perform their duties impartially and in accordance with their conscience. The same rule applies when an interpreter or a translator is appointed ad hoc. If the translation or interpretation quality is poor, the judge has the right to appoint another translator or interpreter.

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Joanna Osiejewicz (2017), Education of Translators and Interpreters as a Determinant of Access to Court - A European and Polish Perspective, „European and Comparative Law Journal", vol. 6/2, p. 2-23.

©2018 by joannaosiejewicz.